Objective 3:
Identify The Legal Status And Significance Of The Federal Government's Sustainable Development Obligations

To identify and ensure a common understanding of the legal status and significance of the federal government's sustainable development obligations arising from both domestic and international sources.

The federal government's legal obligations related to sustainable development derive from various sources, including: (i) international law, (ii) domestic legislation, and (iii) domestic policy statements and documents. Sometimes the sources are hybrid combinations. For example, the 'polluter pays' principle, an early forerunner of the present-day raft of 'environmentally sound and sustainable development' principles, was developed in part through early English common law (Rylands v. Fletcher), decisions of an international tribunal (eg. Trail Smelter Arbitration, United States v. Canada, (1931-41), 3 R. I. A. A. 1905), a 1972 OECD policy directive, and the 1992 Rio Declaration principle 16, as well as being recognized in domestic law concerning liability for environmental damages.

• International law -- represents an important and growing source of the Federal Government's sustainable development obligations. Canada is a party to numerous bilateral, regional and international agreements that contain commitments to promote sustainable development or to act in accordance with various of the principles that are related to sustainable development. Such provisions are becoming an increasingly common feature of international agreements. (Annex C describes international sources and trends in sustainable development law.)

The number and complexity of these international agreements is increasing. (Refer to Chart of Agreements 1972 -1992, Annex C, p. 57). A high level of domestic legislative and regulatory action is required to implement such agreements. Accordingly, the need for legal advice on negotiation, interpretation and implementation of international agreements is increasing.

International Law and Sustainable Development

Various international legal principles related to sustainable development are emerging. While not all of the content and significance of these principles have been agreed upon, some have emerged from United Nations summit conference declarations (eg. the 1992 Rio 'Earth Summit' on Environment and Development (UNCED), the 1994 Cairo Population Conference, the 1995 Beijing Conference on Women, and the 1995 'Social Development' summit conference in Copenhagen. International conventions and aid agreements as well as case law and scholarly writing have identified duties on countries to cooperate, build institutional capacity, fund development aid, respect rights, exchange information, and transfer technology, among others. In the field of the environment, in particular, international obligations have emerged to:

• avoid environmental harm to other nations;
• compensate for transborder environmental damages;
• conduct environmental impact assessments prior to initiating programs and projects; and
• use the "precautionary principle" -one definition of which states that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation"

(Article 15, Rio Declaration on Environment and Development). This principle, now recognized internationally, actually had its origin as the German Vorsorgeprinzip in domestic policy and then law.

• Domestic Legislation -- there is a discernible trend towards incorporating references to sustainable development or its constituent principles into domestic legislation. For example, the Department of Natural Resources Act and the Department of Industry Act both explicitly require those departments to promote sustainable development. Similarly, it is one of the four overarching purposes of the Canadian Environmental Assessment Act.

Statutory Promotion of SD 23

Canadian Environmental Assessment Act, section 4( b): [purpose] is to "encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy"

• Domestic Policy -- endorsements of, or commitments to, sustainable development or its constituent principles by the federal government, (for example, in ministerial statements, departmental Business Plans and Sustainable Development Strategies) have both political and legal significance concerning the types of considerations for which the government should account in making decisions.

Policy Sources of Sustainable Development Legal Obligations

A recent Australian case highlights the possible influence of government policy on legal obligations related to sustainable development. In Leatch v. National Parks and Wildlife Service (1993) 81 LGERA 270, the plaintiff argued that the issuance of a licence to build a road in an ecologically sensitive area contravened the precautionary principle. The New South Wales Land and Environment Court ruled that, although the legislation governing the activity complained of did not explicitly refer to the precautionary principle, the government was bound to respect the precautionary principle. The court ruled that the precautionary principle had become a part of Australian law through its inclusion in various international agreements to which Australia was a party, and through its inclusion in domestic policy documents.

Sometimes the source and nature of an obligation are not easy to categorize. Prior to the 1989 decision of Mr. Justice Cullen in Canadian Wildlife Federation Inc. v. Canada (Min. of the Environment) (1989) 3 F. C. 309, affirmed (1990) 2 W. W. R. 69, the "Oldman Dam" case, compliance of the federal government with the environmental impact assessment process established by the Environmental Assessment Review Process (EARP) Guidelines Order was generally considered to be a matter of policy and not of law. But in that and subsequent decisions, the Federal Court made it clear that the EARP Guidelines Order was a law of general application which was binding upon all those to whom it applied. Subsequently, an updated process was enshrined in a new statute, the Canadian Environmental Assessment Act, 1994.

Although there may be a good understanding of some of these obligations, there is not a widespread, common understanding of the Federal Government's overall obligations related to sustainable development from all of these sources acting together. The scope and significance of these obligations should be researched and communicated to other government departments, both to provide an accurate assessment of current obligations, and to inform future government action with respect to entering into these types of obligations and instruments.

3.1 The Department will undertake one or more studies to address this issue.

3.2 The Department will ensure that its information on sustainable development is updated on a regular basis.

3.3 Justice counsel and legislative drafters will continue to reflect sustainable development obligations in the legal opinions and drafting advice they provide on an ongoing basis to the government.

3.4 The Department will continue to cooperate with the Office of the Commissioner of the Environment and Sustainable Development in its study on Canada's international sustainable development commitments.

3.5 The Department will, when appropriate, add a module on sustainable development and law to its Legal Awareness Program.

The Legal Awareness Program

For the last several years, Justice has been delivering courses to increase the legal awareness of managers in client departments and agencies across the federal government. These courses are provided in accordance with client needs and priorities identified in the context of service agreements between the Department and its clients. The Program currently includes such topics as public law, human rights, contracting and property administration, and could be expanded as required to cover sustainable development issues as they relate to the law.

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